IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110010749 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant defers to counsel in regard to her request.

2.  The applicant states she served as a finance specialist in the Army from July 1999 until her discharge in lieu of trial by court-martial in August 2001.  She was charged with larceny and making false statements.  Although she wanted to speak with the U.S. Army Criminal Investigation Command (USACIDC, also known as CID), she was advised by her counsel to not say and/or sign anything.  Her counsel also advised her to request and to accept a discharge in lieu of trial by court-martial.  She did this willingly and with full understanding of what she was doing and the consequences of this type of discharge.  However, she did not believe then or now that she was guilty of the charges and contends she did not intend to steal money from the U.S. Army.

3.  She notes that of the three individuals involved, she was the only one disciplined while the others were allowed to continue their service.  Her separation from the Army was very traumatic for her and her family.  She made a mistake and has suffered the consequences.  She paid her debt to society and to the Army and contends her overall military service and her post-service conduct justify an honorable characterization.

4.  The applicant provides evidence through her counsel.



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge under other than honorable conditions (UOTHC) be upgraded to honorable or general discharge under honorable conditions with a narrative reason of "Secretarial Authority."

2.  Counsel states, in summary, the applicant served honorably on active duty for 2 years without blemish and later she had one incident of alleged misconduct.  Her counsel contends her post-service accomplishments are numerous and her conduct has been exemplary.  She successfully increased her job responsibilities through her honesty, intelligence, and sheer hard work.  She is a very positive citizen whose contributions to her community have been noted.  The applicant's counsel argues the Army Discharge Review Board (ADRB) has granted relief in four similar cases and asks that these cases be considered.

3.  Counsel provides:

* six statements of support
* eight customer service recognition cards
* DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 30 August 2001
* Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, discharge packet
* DD Form 458 (Charge Sheet), dated 18 June 2001
* four ADRB Records of Proceedings

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army on 6 July 1999.  She completed training as a finance specialist.  The highest rank/grade she attained while serving on active duty was specialist/E-4.

2.  A CID investigation report, dated 11 April 2001, established probable cause to believe the applicant and two other Soldiers, one of whom was her spouse, conspired together and completed a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA) to receive BAQ with dependents for which they were not authorized.

3.  On 18 June 2001, charges were preferred against the applicant for:

	a.  willfully failing to comply with a policy memorandum by signing as the approval authority on a DA Form 5960, as it was her duty to do;
	b.  with intent to deceive, signing an official record (DA Form 5960) which was totally false and was then known by her to be false;

	c.  with intent to deceive, signing an official record which was false in that SPC Z____ C____ coded SPC P____ M____ to receive basic allowance for housing (BAH) and was known by SPC Z____ C____ to be false; and

	d.  stealing military property of a value of about $876.23, the property of the U.S. Government.

4.  On 14 August 2001 after consulting with counsel, she voluntarily requested discharge for the good of the service in lieu of trial court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, she acknowledged she had not been coerced with respect to her request for discharge.  She acknowledged that, by requesting this discharge, she was admitting guilt to the charges against her.  She also acknowledged she understood she could be discharged UOTHC and the results of the issuance of such a discharge, and that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  She waived her rights and elected not to submit a statement in her own behalf.  

5.  On 22 August 2001, her unit commander recommended approval of her request.

6.  On 29 August 2001, the appropriate separation authority approved her request and directed the issuance of a UOTHC discharge and reduction to pay grade E-1.

7.  Accordingly, she was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 30 August 2001 under the provisions of Army Regulation 635-200, chapter 10.  Her service was characterized as UOTHC.  She was credited with completing 2 years, 1 month, and 25 days of active service.

8.  On 14 August 2009, the ADRB denied the applicant's request for an upgrade of her discharge.  The board determined her discharge was proper and equitable.

9.  The applicant provides numerous statements of support through her counsel which bear witness to her post-service achievements, integrity, and community involvement.

10.  The applicant's counsel cites previous ADRB cases where the applicant was granted either full or partial relief based on considerations of honorable military service, the nature of the misconduct charged or alleged, the equitability of the original characterization, and post-service performance and conduct.  Counsel states that applying these same considerations would justify a favorable board action in his client's case.  Further, her discharge was inequitable because other implicated Soldiers were allowed to continue their service.  A CID investigation and Staff Judge Advocate review found reason to believe that three individuals committed the offense that only the applicant was charged with.  This action suggests disparate and unfair treatment by the command and was done to "set an example."

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 specifies that a member who committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests the applicant's discharge UOTHC be upgraded to honorable or general under honorable conditions with a narrative reason of "Secretarial Authority."

2.  The ABCMR corrects records found to be in error or unjust.  Therefore, the ABCMR considers each case on its own merits and will not consider the decisions made by other administrative boards, such as the ADRB, which operate under different guidelines.  Further, the Board is not an investigative body and will not review the reasons other implicated parties were not charged under the Uniform Code of Military Justice.  The applicant's case was decided based on the available evidence.
3.  The applicant's post-service achievements are noteworthy but do not warrant the requested relief.  Although she contends she did not intend to steal money from the government, nor was she guilty of committing larceny or submitting a false statement, the evidence of record shows a CID investigation found probable cause that she conspired with two other Soldiers, one of whom was her spouse, to obtain payment of BAH at the dependent rate.  She certified this payment by signing an official document for which she was not authorized to sign and in doing so violated and abused the fiduciary trust and responsibility of her position as a finance clerk.  She also acknowledged that, by requesting discharge she was admitting guilt to the charges against her.

4.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  Further, her discharge accurately reflects her overall record of service.

5.  In view of the above, her request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110010749



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ABCMR Record of Proceedings (cont)                                         AR20110010749



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